WHAT LAWSUIT CRISIS?

           These days one can hardly pick up a newspaper or turn on a TV new program only to read of hear that the courts of this country are flooded with frivolous lawsuits and that jury awards have become totally devoid of reason and common sense. The corporate interests constantly cry for Tort reform and armies of highly paid lobbyists wine and dine our legislators in an attempt to influence passage of laws that will curtail the right of individual citizens to have access to the judicial process to assert their right of just compensation for negligently caused injuries. Here is the reality.

            The RAND Institute for Civil Justice report -- entitled "Trends in Civil Jury Verdicts Since 1985" -- scrutinizes all jury verdicts from 1985 to 1994 in state courts of general jurisdiction in 15 jurisdictions in California, Illinois, Missouri, New York, Texas and Washington, a "diverse sample of geographical location, population growth over the past ten years, race and household income". Data from the study reveals that there never has been a "litigation explosion" and that, contrary to the claims of so-called tort "reformers," business cases accounted for the largest portion of punitive damages awarded over the past decade. Among the conclusions reached in the RAND study:

• Trial rates have remained flat and, in some cases, have declined over the past decade. Nor has the proportion of cases changed significantly during this period. Automobile and land liability cases continue to dominate the courts, while medical malpractice and product liability cases account for a small percentage of all case filings.
• While plaintiffs win an average 56.6 percent of the time in all cases, they are least successful in medical malpractice and product liability cases, in which they win just 33 percent and 44 percent of the time, respectively.
• The study revealed that the highest expectations for awards and two actual highest awards ($13.7 billion and $413 million) occurred in business cases.
• While the study found that punitive damages are "awarded very rarely," it also found that punitive damage awards that occurred in business cases accounted for 47 percent of all punitive damages awarded during the 10-year period for all case types. Intentional tort cases accounted for another 36 percent of all punitive damage awards. Thus, together these two case types accounted for 80 percent of all punitive damages awarded during this period.
• In contrast, product liability was the underlying cause of action in only 4.4 percent of all punitive damage awards, and medical malpractice the underlying cause of action in only 2 percent of all punitive damage awards.

             Our civil jury trial system has served us well since the creation of our Republic and the Rand study only confirms that the system continues to prove to be the fairest system of justice for the individual in the world. The old saying, If it ain't broke, don't fix it, is most appropriate here.

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  NBC's Dateline Exposes State Farm Claims Sham

             Lucretia Duffy was broadsided by a truck while driving in her hometown of Fairbanks, Alaska, in 1993. The injuries she sustained were not broken bones that show up on x-rays, but joint and muscle pains. Despite the fact that Duffy's doctor concluded that her injuries were a result of the crash, State Farm Insurance considered Duffy a "questionable" case and sent out her medical records to a paper review company called "Comprehensive Medical Review" (CMR). Someone in an office a thousand miles away disagreed with Duffy's doctor and concluded that her injuries were only worth a settlement of $780, at a time when her medical bills had reached $10,000. Duffy's world was turned upside down. Her debts accumulated, her clinic stopped treating her because it had not received payment, and Duffy's at-home childcare business fell apart.

              And the worst part? CMR was a sham. In the early and middle 1990s, State Farm commonly used paper reviews to determine how much money to give to its claimants. A paper review is, in theory, a second opinion from a doctor regarding the injuries to the crash victim based solely on the claimant's medical records. NBC's Dateline conducted a 15-month investigation of State Farm Insurance and found a number of cases similar to Duffy's. The June 23, 2000, segment, "The Paper Chase," exposed State Farm's use of CMR and a number of other paper review companies like it. Lucretia Duffy did not know that CMR was a fraud. It was supplying State Farm with reports that in some cases were not even written by doctors. A number of cases actually written by doctors were later ways that made the claimants' injuries seem less severe or unrelated to their accidents.

             What Dateline uncovered was a scam in which State Farm had employed a number of medical review firms to look at cases in an effort to decrease costs. While State Farm claimed that these reviews were done by impartial parties, it plugged the reviews inside the company as "medical cost reduction services," even going so far as to say to its employees, "... if you don't want to pay a claim, send it to CMR." State Farm processes approximately 33,000 claims a day. In the past, 1 out of every 20 was deemed "questionable" and sent out for a paper review. CMR has, reportedly, cleaned up its act. Medical Claims Review Services, another paper review company previously employed by State Farm, closed its doors in 1995.

              When confronted by Dateline reporter John Larsen as to how State Farm was alerting its customers of the mishandled cases, senior vice-president Jack North answered that they have reopened 4,900 claims settled through the use of CMR for reevaluation. Five hundred of those claims have now been paid in full and many more are set to be reexamined.

              In the meantime, maybe Cindy Robinson, a victim of a fraudulent paper review who has sued State Farm, has the right idea: "If State Farm were my neighbor, I'd sell my house and move."

  

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  Mediation-A Sensible Alternative to Trial

              Over 95 percent of lawsuits are settled out of court. Settlement is always preferable to the stressful, expensive and uncertain exercise of going to court. In Florida, before a judge will place a case on the trial docket, he or she will order the parties to get together in an informal setting to conduct serious settlement negotiations under the guidance of a specially trained mediator. The mediation program has been very successful in resolving most of the cases that it handles.
              A mediation session is typically set at a point in the lawsuit when the attorneys for each side have had ample opportunity to discover and evaluate the strengths and weaknesses of each side's case. A mediator is selected by agreement of the parties or appointed by the court. The mediation meeting may take place in one of the attorneys' offices or at any suitable conference room facility. Under the mediation rules, all parties and their attorneys must be present at the mediation meeting. If an insurance company is involved, a company representative must be present at the mediation as well. The representative must come to the mediation with the authority to make the final decision on whether to settle and how much the company is willing to pay up to full amount of insurance coverage available.
              A certified court mediator is a person who has fulfilled the necessary educational and experience requirements under Supreme Court of Florida Rules. Typically, a certified mediator is either an attorney of many years experience or a retired Judge. The mediator's job is not to decide disputed issues of fact in the case or to give his or her opinion on the merits of either sides' position. It is the mediator's role to assist the parties in reaching a settlement of the case by helping them to rationally assess the strengths and weaknesses of their respective sides and to reach a compromise.
              A typical mediation session begins with a mediator sitting at the head of the table and the opposing sides and their attorneys seated on either side. The mediator gives a brief description of the process and then invites each side to make a brief opening statement of their positions. Then the parties break into separate groups and are directed to remain in different rooms. The mediator then shuttles back and forth among the parties and helps them analyze their case, and then takes offers and counter-offers in an attempt to reach a compromised settlement of the dispute. More often then not, an amicable settlement is reached and the parties may reconvene in the main conference room to sign a settlement agreement.
  

              Mediation has several advantages to the uncertainty of taking one's chances in court:

  • It is much less expensive than preparing a case for trial.
  • It eliminates the risk of an unsatisfactory outcome.
  • It brings the matter to an early conclusion.
  • It is much less stressful than formal court proceedings.

  Mr. Vincenti has participated in hundreds of mediations both as attorney and as a Certified Circuit Court Mediator. "I am a firm believer in the mediation process."

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  What's in your Auto Insurance Policy

              Most people do not think about what is in their auto insurance policy until after they have been in an accident. Many times, our clients are surprised to find out only too late that they did not have the coverage they thought they had. Here are some hints on how to decipher your insurance policy to see what coverage you have.
              The face sheet of the policy is typically called the "Declarations Page". It is the paper you receive periodically showing what the premium is and what portion of the premium is for each item of coverage. Here are some of the typical coverages found in an Auto Insurance Policy:

             Bodily Injury Liability--This coverage pays for damages for injury or death if your car is involved in an accident which was solely or partially your fault. It also pays for a lawyer to defend you if suit is brought against you. Typically, your policy will contain "split limits" such as 50/100. This means that the most any one claimant can receive is $50,000 and the most the company will pay out in total to any number of claimants for the same accident is $100,000.
             Property Damage Liability--This coverage pays for damages to property when you or another driver of a car are at fault in an accident. It also provides coverage when you are driving a rental car.
             PIP (Personal Injury Protection or "No Fault" Coverage)--This is the coverage for you and others in your family for medical expenses and lost earnings due to injuries sustained in a motor vehicle accident regardless of who is at fault. The basic PIP coverage provides up to $10,000 coverage which will pay 80% medical expenses and 60% of lost wages and all replacement services such as child care, maid services, etc.
             Medical Payments--This coverage will pay those medical expenses which PIP does not pay up to the extent of the amount of coverage you have purchased.
             Collision--This coverage pays for repair or replacement of your car if it is damaged in a wreck regardless of who is at fault. If your car is financed, the bank will probably require you to have collision coverage. Since collision coverage typically carries a deductible, if your car is damaged in a wreck which is the other party's fault, many times it is better to make a claim against that party's damage liability coverage.
             Comprehensive--This coverage is for property damage to your vehicle from causes other than collisions, such as fire, theft, floods, etc. The coverage typically carries a deductible, but under Florida Law, windshield damage may not carry a deductible. This is to encourage motorists to repair damaged windshields promptly.
             Uninsured/Underinsured Motorist (UM)--This coverage pays for injuries to you, your passengers and family members who are injured by another motorist who is at fault but does not carry any bodily injury liability insurance or does not have insurance in a sufficient amount to pay for all your losses. Because one-third of all motorists on the road in Florida do not have liability insurance, UM is probably the most important coverage you can have. It is like buying bodily injury liability insurance for every driver on the road. The premium for the coverage is modest in comparison to the protection it gives you if you should ever need it.
              Remember, automobile insurance is like just about any other product. You get what you pay for. Avoid the false economy of bargain basement coverage for substandard companies. Your best bet is to stick with one of the well known national companies. Shop and compare rates before you buy. For further information, contact the Florida Department of Insurance, toll free at 1-800-342-2762 and ask for the most current copy of "Automobile Insurance Consumer's Guide."

             

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  No Fault Insurance

             In 1971, Florida became one of the first states to enact a so called "No Fault" Automobile Insurance Law. Now, some 20 years later, many Floridians still are unfamiliar with what No Fault Insurance means to them.
             The idea of no fault insurance is to assure that a person injured in an auto accident has a quick and ready means to get medical treatment and replacement of lost wages or income without having to go through a possible lengthy court battle with the person who may have been at fault in the accident. Another name for No Fault Insurance is "Personal Injury Protection" (PIP). Every licensed driver in Florida is required to purchase PIP. PIP provides for payment of 80% of any medical bills incurred for treatment of injuries in an auto accident and reimbursement for 60% of any lost wages or income subject to a maximum payout of $10,000.
             The most controversial aspect of the No Fault Law is the Tort Threshold. This concept is meant to keep cases involving relatively minor injuries out of the courts. An injured person may only sue the person at fault in the accident for pain and sufficient and the like when his or her injury is likely to be permanent or has resulted in severe scarring, disfigurement or death. If the injury is of sufficient severity, it is said to have reached the tort threshold.
             Many times, especially in cases of injuries which are not obvious, such as neck or back injuries, the threshold can become the focus of an auto accident lawsuit. It then becomes up to a jury to decide if the plaintiff actually has a permanent injury. That is why it is important for an auto accident victim's attorney to work closely with the treating doctor to assure that the client's injury is properly documented. This will help the client to receive a reasonable settlement and hopefully avoid the necessity of an expensive, stressful court battle with an uncertain outcome.

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  Uninsured Motorist Insurance

              Did you know that over a third of the drivers on the road in Florida have no automobile liability insurance. To make matters worse, those drivers almost never have the financial assets or means to pay for damages to someone they injure. You can and should buy UNINSURED MOTORIST COVERAGE, commonly called UM to protect yourself from the damages caused by drivers with no insurance.
              The additional premium for Uninsured Motorist coverage is modest compared to the protection it affords. We tell our clients that UM is the most important coverage they can buy.
              UM coverage not only protects you from drivers with no liability insurance, it can also provide benefits when the driver responsible for the accident has liability insurance, but not enough to fully compensate you for all of your injuries. This is called UNDERINSURED MOTORIST coverage. Suppose you receive a serious injury and your claim is worth $50,000. The party responsible has only $10,000 in liability insurance, but you have had the wisdom to buy $50,000 in UM coverage for yourself. The two coverages are added together and amount to a $60,000 pool of money which would be enough to fully satisfy your claim.
              Another important feature of UM insurance is what is called STACKING. If you have more than one vehicle insured under the same policy, you can and should elect Stacking. This means that if you have say, $50,000 UM coverage in your policy and two vehicles insured, the two $50,000 coverages are added together or "stacked" to create $100,000 in UM coverage. If you have four vehicles insured under such a policy, with stacking you would have $200,000 in UM protection. If you are eligible to stack UM coverage, we strongly recommend that you do so.
              Buying UNINSURED MOTORIST coverage is like buying liability insurance for every other driver you meet on the road. Don't rely on the other guy to have insurance. Call your insurance agent today to make sure you have adequate UM coverage.

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  Homeowners Insurance

              If you are a homeowner, you surely must have homeowners insurance. How many of us have even looked at our policy to see what coverage it provides? You may be surprised to learn there is probably a lot more protection than just the repair or replacement coverage for you home if you suffer a loss in a fire, hurricane, or other disaster. You have liability coverage to protect you if someone suffers an injury while on your premises that will pay their damages and legal expenses, if you are sued. There is also coverage for a visitor's medical expenses, if he or she is injured on your property.
             Suppose you are in the supermarket and accidentally injure someone by bumping into them with a grocery cart? Your homeowners liability coverage will apply there too. In fact it will cover most other non-motor vehicle related liability situations. What if your dog gets out and bites a neighbor's child? Homeowners insurance will probably take care of it. Even if you are a renter, it is a good idea to get a "Renter's" policy to cover your valuables and protect you from personal liability.

  

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  How Much is my Claim Worth?

             When an injured person first consults a personal injury lawyer, one of the first things this client would like to know is how much the case is worth. An experienced personal injury lawyer would never try to answer this question until the lawyer has completed a full investigation into the accident, all the damages and expenses have been totaled, and the client's doctors have reported how the injury will affect the client in the future. Often it is several months after the accident before all the necessary factors are known which will enable the lawyer to evaluate the value of the claim and begin settlement negotiations with the insurance company. If the client insists on a quick settlement, this can be accomplished, but almost always the client will get less than the full value of the claim. Another danger of settling too soon is that a latent or unknown injury may appear weeks or months later. If the claim has been settled and the responsible party released, it cannot be reopened.
            In our firm we endeavor to settle every claim for "top dollar". We are not a personal injury "mill" which sacrifices full value in favor of quick and easy settlements. That is, we deal in quality, not in quantity. We employ state-of-the-art technology by applying a special case evaluation computer program which analyses jury verdicts in cases all over the Country and compares similar case facts to arrive at a statistical prediction of what a jury in any geographical area is likely to award in a case similar case. We often use this data in our settlement negotiations with insurance companies.
            We make every effort to achieve a full and fair settlement before we resort to filing a law suit in court. If, despite our best efforts, settlement negotiations do not result in settlement, we file suit immediately and push the case through the court system as rapidly as possible. Our goal is always the same: To achieve the best possible result for our client.

  

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  What If Your Insurance Company Refuses to Pay?

            You have paid your health insurance premiums for over a year. Then one day you become ill and have to go to the hospital. You present your health insurance card at admissions, and the clerk calls the 800 number to confirm your coverage. You are admitted and are given a battery of medical tests. The doctor decides that you have appendicitis and operates. In a couple days you go home to recuperate. The bill is $15,000. Thank goodness you had the good sense to buy the insurance.
            Weeks go by and then the bills and letters start to come. You call your insurance company and are told they are still looking into your claim. Weeks later, you get a letter from them telling you that your claim has been denied because you did not provide full medical disclosure on your applicable for the health insurance. What will you do now?
            Give me a call. You have been a victim of a common insurance practice known as "Post-Claim Underwriting." Many health insurance companies issue policies without following up on the insured's original application to try and find out an applicant's full medical picture. Although this practice is not illegal, many companies use it as an excuse to wrongfully deny legitimate claims.
            When a claim comes in, they order all the insured's medical records for many years back and pour over it and match it against the medical history the insured put in the application. If they find that the insured left anything out, they may use this omission as an excuse to deny the claim on the grounds of "material misrepresentation."
            When applying for any kind of insurance, it is important to check the application very carefully to make sure it is complete and accurate. Don't rely on your agent' filling in the blanks to provide all the necessary information. Read the application carefully before you sign it.
            If you find yourself in this unfortunate situation, all may not be lost. If your insurance company is wrong, the law provides a remedy. We will look into it for you and advise you what you can do. Just as we do in personal injury cases, we offer free consultation in cases involving denial of insurance claims. Let us try to help.

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  If You Have an Injury Claim, Don't Delay!

            People who have been wronged must decide whether to make a claim. Sometimes they ponder this question a long time before deciding. When considering whether to make a claim, people must also think about "statutes of limitations."
            Statutes of limitations put time limits on when actions may be brought. If you wait too long to make a claim, and the statute of limitations passes, your claim will be denied even if it was valid.
            As an example of an actual case, once a man was injured aboard an airliner when the overhead bin opened during flight, dropping a heavy package onto his head. He tried negotiating his claim himself with the airlines for many months. Finally he went to the law library and looked up a form to draw up and file his own lawsuit. A court noted that the statute of limitations for personal injury actions had passed, so his claim was dismissed and he lost the chance to recover damages for his injuries.
            Statutes of limitations have harsh results, and ignorance of the law is no excuse. Thus, if you are considering whether to make a claim, consult a personal injury lawyer properly to assure your claim is not lost by delay. The state whether the accident occurred is important, since statutes of limitations vary from state to state. Also, even if it seems like a claim arose long ago, don't decide for yourself that your claim must be too old to file. If you are in doubt, call us. We offer free consultation on all injury cases.

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  Sexual Harassment

            Today's society does not tolerate sexual harassment in the workplace. The law provides harsh civil punishment for individuals and companies who engage in or tolerate such behavior in the workplace. This has created a climate of uncertainty as to just what conduct at the workplace constitutes sexual harassment as opposed to friendly, casual communication. Here are some guidelines:

  What Behaviors Constitute Sexual Harassment?
  
  • Demand sexual favors from another in exchange for favorable reviews, assignments, promotions, continued employment, or promises of same.
  • Engaging in continual or repeated unwanted sexual jokes, language, epithets, flirtations, propositions, or advances.
  • Making graphic verbal comments about an individual's body, sexual prowess, or sexual deficiencies.
  • Describing an individual using sexually degrading or vulgar words.
  • Leering, whistling, touching, pinching, brushing the body, assault, coercing sexual acts, or making suggestive, insulting, or obscene comments or gestures.
  • Displaying sexually suggestive objects, pictures, posters, or cartoons in the workplace.
  • Name-calling or relating stories, gossip, comments, or jokes that may be derogatory toward a particular sex.
  • Displaying sexually suggestive graffiti.
  • Retaliating against employees for complaining about such behaviors.
  • Asking questions about sexual orientation or preferences.
  • Consistently harassing only members of one sex, even if the content of the verbal abuse is not sexual.

            If you feel you are a victim of sexual harassment in your place of employment, call us for a free consultation.

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  Finding a good lawyer

              In the days before lawyers were permitted to advertise their services, the only way to find good lawyer was to ask around and get a recommendation from a friend or acquaintance. This is commonly referred to as word-of-mouth referral. It is still the most common way that lawyers get new clients. Since the Supreme Court of the United States ruled that lawyers should be permitted to advertise just like any other business, there has been a virtual explosion of lawyer advertising, especially in the yellow pages, particularly in the area of personal injury law. Some firms have even taken to advertising on television in a search for new clients.
              How does a consumer decide when confronted with so much information? How does one really know who is qualified and competent? One good indicator is board certification. The Florida Bar has recently undertaken an ambitious media campaign to educate the public about the board certification program. To become board certified in a particular area of law, the attorney must have practiced at least 5 years and have demonstrated to the satisfaction of the certification board that her or she has substantial experience in a given area of practice. This must be verified by several other attorneys and judges. The applicant must then pass a rigorous examination.
              Currently the areas of Florida Bar Board Certification are: Civil Trial Law (which encompasses personal injury law), Criminal Trial Law, Real Estate Law, Civil Appellate Law, Criminal Appellate Law, Tax Law, Marital and Family Law, Estate Planning and Probate Law, Admiralty and Maritime Law, Immigration and Nationality Law, Health Law, Business Litigation, Government Law, and Worker's Compensation Law. Plans are in the works to open other area of law to board certification as well.
              This does not mean that there are not many competent lawyers who are not board certified, however, board certification is the only reliable means for a consumer to have some assurance as to a given attorney's actual experience without having to conduct an independent investigation before deciding which lawyer may be right for any given job.
              I strongly believe in the board certification program. I became board certified in civil trial law in 1982 when the program was first started. Only a small percentage of the 45,000 lawyers in Florida have achieved this distinction. Under the rules of the Florida Bar only a board certified lawyer may hold him or herself out as a "specialist".

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  Contingency Fees

              The contingency fee is an arrangement by which an attorney is paid for his or her services only if the case is successfully concluded by a recovery of money. Typically, the attorneys fee is an agreed percentage of any monetary recovery made in the case. Often it is the only way people of modest means can afford to hire a competent attorney to take on wealthy corporations and insurance companies. That is why the contingency fee has been called "The Poor Person's Key to the Courthouse."
              At LMV Law Offices, we offer contingency fees in all personal injury and insurance cases. Plus, there is never any charge for the initial consultation.

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  Be Careful Who You Let Drive Your Car

             Sally Patterson's neighbor, Midge, was in a bind. Midge's car was in the shop and she needed to make a quick run to the supermarket for milk. Of course Sally said it was OK for Midge to borrow her car for a few minutes. Sally did not know Midge had no auto liability insurance. On the way to the store, Midge was looking in her purse for something and failed to see a car stopped in front of her for a red light. Midge hit the stopped car at about thirty miles an hour, totaling both cars. Midge received a severe neck and back injury and the driver and passenger in the car received very serious, multiple injuries and had to be evacuated by air ambulance to the regional trauma center.
              Now Sally is being sued by both people in the other car. Sally's insurance company is defending her in the lawsuits, but they have notified her that her policy will not be renewed. She has been shopping for new insurance, but the premium quotes are astronomical. Sally is wondering why she is responsible when she wasn't even driving.
             Florida follows what is known as the Dangerous Instrumentality Doctrine. A moving automobile is a potentially dangerous apparatus, and one who authorizes another to use it, is liable if the user is negligent in its operation. This means Sally can be sued under the principle of Vicarious Liability.
             Problems can also arise when a family has several cars which are titled in the name(s) of other than its principal driver. It is a good idea to title all motor vehicles in the name of the person who uses it the most. We know of one recent case where a couple had to pay thousands of dollars out of their own pocket when their 18 year old son, Eddie, was cited in a serious accident and they were sued by Eddie's severely injured passenger. The unfortunate couple could have avoided this financial nightmare, by transferring Eddie's car title to him when he became 18. That way, only Eddie, who did not have any personal assets at risk, would have been the only one liable.
  Here is how one might avoid problems of this kind:

  • Never loan your vehicle to an un unlicensed or uninsured driver.
  • All motor vehicles should be titled only in the name of its principal driver.
  • Be sure you have adequate Automobile Liability and Uninsured Motorist Insurance Coverage.